THREE-STRIKES LAW : Commit a Misdemeanor--Don’t Worry About Jail

“Three strikes and you’re out” has been enshrined in California law for a little more than a year. The result in Los Angeles County is a boondoggle of unparalleled proportions.

According to court sources, convicted misdemeanor defendants sentenced to a year in jail are doing, on average, 19 days of actual time. Half the county’s civil trial courts have been turned over to criminal proceedings. In cases involving low-grade felonies, for which judges are prone to hand down probationary sentences, public defenders are asking for a year in jail, while deputy district attorneys demand 60 days. Why? Because the low-grade felon will get credit for serving a year in custody, though doing only four months or less, due to jail overcrowding.

The California Supreme Court has accepted its first three-strikes case. The justices will decide whether the anti-crime law violates the constitutional doctrine of “separation of powers” by giving prosecutors ample discretion to call strikes while allowing judges no dis- cretion to set them aside in the “interests of justice.” In other words, should 28-year-old prosecutors decide who gets life imprisonment, or should that burden be placed on older, probably wiser and certainly more experienced jurists?

It is fortunate that the state Supreme Court is conservative, because the justices’ conservative bona fides will be required. As the justices well know, if they uphold the three-strikes statute prohibiting judicial discretion, every department of state and county government--except prisons--will become dysfunctional. The state prison system will become a money vortex, swallowing up public health, higher education, schools, libraries and other essential public services.

According to Public Defender Michael P. Judge, about 2,000 third-strike cases have been filed in Los Angeles County. Of them, 10% have been adjudicated, while 15% were plea-bargained to something less than 25 years to life. The remaining 75%--1,500 cases--are pending, accordingly ballooning the three-strikes population awaiting trial in County Jail.

This is not to say that defendants are not going to trial. In the law’s lifetime, the public defender’s office has pleaded only one client guilty in a third-strike case, and that occurred only because the district attorney promised to drop charges against the defendant’s wife.

What’s less clear is whether more criminals--especially, the defendants convicted in the 540,000 misdemeanor cases committed in Los Angeles last year--are being punished. Compelled by federal court decisions preventing more overcrowding, Sheriff Sherman Block must let some prisoners out when the jail population reaches about 23,000. Logically, the inmates to release are those considered less dangerous. By definition, misdemeanants fit that description.

Real-life result: A person can commit a misdemeanor with virtual impunity. A misdemeanor defendant given the maximum one-year-in-County-Jail sentence will serve, on average, 19 days behind bars. Indeed, the easiest way for a misdemeanant to get out of jail is to plead “guilty.” Only people pleading “not guilty” stay in jail. Should this illogic remind you of “Catch-22,” you would be right on the mark. We keep those who say they are “innocent” in, and let those who say they are “guilty” out.

Still, the law is hurting habitual criminals caught a third time committing a violent felony, right? In Los Angeles County, for the seven of 10 defendants charged with a third strike, the charge that may bring them life imprisonment is neither dangerous nor violent. It may be nothing more than petty theft, which for an ex-con is a felony. Consider:

Police officers in the San Gabriel Valley recently mounted what is called a “reverse sting.” The sting was crunching up a macadamia nut and having a narc pretend to be a cocaine dealer. A young man bought a piece of the macadamia nut, thinking it was rock cocaine. He was immediately arrested for “attempted possession of cocaine.”

Alas, it was his third strike. He is now serving 25 years to life in prison for possessing a fraction of macadamia nut. Cost to the taxpayer? Roughly $37,000 a year. Assuming an annual inflation rate of 3%, his incarceration will cost $3.7 million over the 25 years of his imprisonment.

Then there is the Van Nuys case of a man who had a marijuana plant on his balcony, or the Santa Monica ex-con who shoplifted a pair of $1.98 socks, or the Pomona man who stole $5 worth of meat because he, his wife and kid had no food. They all face 25 years to life.

Of the 1,500 third-strike cases pending in L.A. County Superior Court, eight of 10 will go to jury trial. Since we do not have enough courts (or jurors) to handle an additional 1,200 jury trials, civil cases in Pomona and Long Beach are not being tried today.

The only way to build more jails is for the people to vote for jail bond issues. In 1992, Los Angeles County voters turned down jail-construction bonds. As for prison construction, the Legislature may be fearful of submitting new bond issues to stingy voters. Instead, the Legislature uses a special constitutional provision to authorize prison-construction bonds without voter consent. Problem: Since voters have not approved the bonds, underwriters charge the state a premium (points) for not going to the people.

Next month, a new women’s prison, near Fresno, will be completed. It will be filled instantly, because the women’s prison next door is at 190% of maximum capacity. Perhaps we should change the official state song from “I Love California,” to “All Along the Watchtower.”